A Summary of the case: Communication Workers' Union v Illuminat (trinidad and Tobago) Ltd

Bernard, P.

1

Between 10th March, 2003 when he was employed by Illuminat (Trinidad and Tobago) Limited ("the Company") and 15th March, 2005 when he was dismissed, Mr. Kirk Inniss ("the worker') had moved from the position of stores clerk to the position of senior inventory clerk earning a monthly salary of $3,780.00 plus an incentive allowance of $7,500.00.

2

The reasons given for the worker's dismissal were set out in the Company's letter to him dated 15th March, 2005 which read as follows:

"Dear Mr. Inniss

We refer to discussions held between Mr. M. Marshall, Mrs. S. Ali and yourself on October 25, 2004 when you were advised that it had come to the attention of the Company that you were engaging in activities that compete with those of ILLUMINAT (Trinidad & Tobago) Limited, your employer. You were advised that should such conflict of interest arise in the future, severest disciplinary action would be taken against you.

In spite of this verbal warning, we have in our possession evidence that indicates that you have continued with such activities. At our meeting on Wednesday March 2, 2005 you were confronted with this evidence and suspended pending the conclusion of our investigations.

We have concluded our investigations and now advise that we are not satisfied with the explanations given in response to the allegations, and in the circumstances must inform you that your services are being terminated with immediate effect.

Please find enclose cheque no. 028159 in the amount of $3,266.66 which represents payment up to and including March 15, 2004 and your accrued vacation leave.

Yours sincerely ..."

3

The worker and the Communication Workers' Union ("the Union") being dissatisfied with the worker's dismissal caused a report to be made to the Minister pursuant to section 51(1)(c) of the Industrial Relations Act, Chapter 88:01 as a consequence of which the Minister issued his certificate of unresolved dispute on 1st March, 2006. The dispute was subsequently referred to the Court by the Union.

4

The workers explanation as advanced by the Union in its statement of Evidence and Arguments is set out in paragraphs 7-11 of that document as follows:

• "7. On or around the 25th day of October 2004, the worker was asked by a co-worker named Sheldon Lane if the Company had in stock D. V. D burners. Kirk Inniss replied that the Company does not stock the item moreover they do not sell D.V.D burners. The worker thereafter promised to source the D.V.D. burners form (sic) another supplier, which the worker in fact did. He bought the item in his name and paid for same without receiving special treatment (discount) or gain from the transaction personally.
• 8. One Mr. Marshall, a Director of the Department called the worker and informed him that he had received information that the worker was involved in a Business similar to that of Illuminat on a part time basis which is contrary to his Terms and Conditions of employment and that he also considers this action to be a conflict of interest. Mr. Marshall thereafter told the worker that the Company has a policy and that he the worker should adhere to same that is as long as the worker is employed with Illuminat, he should not purchase any item sold by them outside from a competitor.
• 9. The worker had ordered parts from Hi-Touch Systems Solutions Limited for his personal computer on three occasions and was invoiced accordingly. On one occasion when the worker had placed an order for parts, he was absent from his work location at the time when the parts were delivered, accordingly a co-worker received the parts and paid for same. A legitimate transaction that was done above board and not in a secretive manner. Ms. Ali, Supervisor called the worker and Andrea who had received the parts on the worker's behalf. Ms. Ali took the invoice from the worker and made copies of it, then requested that they meet with her in her office. (True copies of the invoice are attached and marked "D').
• 10. Ms. Ali, Supervisor requested that the worker explain to her where he bought the parts and for what purpose. The worker responded telling Ms. Ali that he had purchased the parts for personal use and they were not for resale or for gain as he was aware of the Company's position with respect to such matters. After giving an explanation he was told that it was unsatisfactory therefore she will have to take the matter further. The worker did not hear from the Company until the 2nd March, 2005 when he was requested to attend a meeting. Present at that meeting on the 2nd March, 2005 were Mr. Fenrick Reid and Ms. Gemma Constantine where he was verbally suspended with full pay with immediate effect. The verbal suspension was confirmed in a letter received by the worker on the 16th March, 2005. The Company requested that the worker attend a meeting at their offices on the 15th March, 2005. He complied and was issued with a letter of dismissal dated 15th March, 2005.

5

True copies of the letters are attached as Appendices "E and F".

11

The Union wrote the Company by letter dated 22nd April, 2005 requesting a meeting to discuss the dismissal of the worker. A response to this correspondence was received from the Company by letter dated 28th April, 2005. Parties met on the 9th June 2005 for bilateral discussions with a view of having the matter resolved, but were unsuccessful. Thereafter the Union reported a Trade Dispute to the Minister of Labour, Small & Micro Enterprise Development by letter dated 30th June, 2005. Bilateral discussions failed to induce a settlement thereafter the matter of the dismissal of the worker was referred to the Industrial Court for determination. Parties complied with the order of the court that they present in writing Evidence and Arguments in support of their case."

6

The Union claimed, inter alia that the Company failed in its obligation to inform the worker of each allegation made against him with sufficient particulars to enable the worker to reply. The Union prayed that the Court order the reinstatement of the worker together with payment to him of damages and compensation on the ground that his dismissal was effected in "circumstances that were harsh, oppressive, unjust and contrary to the principles and practices of good industrial relations".

7

For reasons which will appear in the course of this judgment the Court agrees with the Union that the dismissal of the worker was effected in circumstances that were harsh and oppressive or not in accordance with the principles of good industrial relations practice.

8

The Court heard oral evidence from Ms. Gemma Constantine, Manager, Administration, Human Resources, Industrial Relations and General Administration of the Company. Ms. Constantine testified that she participated in an inquiry into the allegation against the worker that he was purchasing parts from one of the Company's suppliers on his own behalf, contrary to the Company's policy. At that meeting the worker offered the explanation that the purchases he had made were of items for his own use. When the Company's representatives met with the worker on 2nd March, 2005 on behalf of the Company it was explained to the worker that he was suspended pending investigation. She did not inform him then who would constitute the investigating team. She received reports from different members of the team but received no report compiled by the investigating team as such. Although there were discussions between the Company and the suppliers concerned she did not compile formal charges or inform the worker formally what was alleged against him. On 15th March, 2005 she called the worker to her office at Curepe and there delivered to him the letter of dismissal.

9

The Company next called Mr. Devanand Gunness, its Manager, Customer Services and Administration and Technical Support. He identified the items listed in various invoices used in support of the case against the worker as relating to items sold by the Company.

10

In response to Mr. Thompson in cross-examination the witness, Mr. Gunness, said that he formed part of an investigating team into the allegations against the worker. He was asked by Ms. Ali to find out "certain things" about parts and prices and whether the Company stocked identical parts. The Company did not have all the brands in question in stock.

11

Mr. Gunness identified certain parts included in the invoices as parts which the Company did not sell.

12

Ms. Pamela All was the Senior Manager and started to work with the Company as a Manager in May 2004. She testified that she worked closely with the worker whom she described as "key" in the technical department.

13

Ms. Ali said that in October 2004 she observed that the worker bought items from the Company's suppliers and sold them to its customers. She had a discussion with him on the matter pointing out that the Company frowned on such a practice. She was aware that after this discussion the worker continued "to buy spares and parts not for Illuminat". In February, 2005 she came into possession of invoices addressed to the worker. She retained those invoices for the purpose of discussing them with the worker.

14

Ms. Ali identified the parts referred to in all the invoices produced to her as parts in which the Company dealt. Mr. Thompson cross-examined her on the brands of some of these parts. She was unable to say whether the Company carried a particular brand in 2005. She agreed that Mr. Gunness had the competence to say that and if he did say that Illuminat did not carry a particular brand in 2005 she would not know how to reply.

15

In relation to another brand mentioned in an invoice, Ms. Ali insisted that the Company sold that brand in 2005. She said that the worker told her that he was in partnership with his cousin but that the items in question were for his personal use. While she informed the Human Resources Department of what the worker said to her, she did not write him formally.

16

The worker testified on behalf of the Union. He said that some time before 15th March, 2005 a member of the Company's management, Ms. Ali came to him with some invoices and questioned him about them. He explained that he had bought the items for his own use. He admitted that the Company stocked some of the items on the invoices while some of the brands were not carried by the Company. In any event, he said, those items that the Company stocked were more expensive than those he had purchased outside. He was verbally suspended when he attended a meeting on 2nd March 2005. At that meeting the invoices in question were presented to him and he was questioned on them. He only received the suspension letter dated 2nd March, 2005 on 16th March, 2005, the same day he received the letter of dismissal. Between the meeting on 2nd March, 2005 and the date on which he received his dismissal letter no one from the Company informed him of the Company's findings, nor did anyone tell him whom they had contacted or what form the investigation had taken.

17

Cross-examined by Mr. Singh, the worker said that he had placed the orders for the parts over the telephone during his lunch hour. He admitted that while doing so he was looking after his personal business and not the Company's.

18

Mr. Thompson submitted that the Company had never particularized any formal charges against the worker, alleging instead that the worker had exhibited unethical conduct. It was not alleged that the worker was in competition with the Company. Stressing the Company's failure to indicate to the worker who were the members of the investigating team, or who testified before them, Mr. Thompson argued that the dismissal of the worker was contrary to good industrial relations practice and the rules of natural justice.

19

As I said earlier, the Court agrees with Mr. Thompson's contention. There were allegations against the worker concerning the fundamental obligation of fidelity which a worker owes to an employer, an obligation so fundamental to the contract of employment that the Company regarded dismissal as the remedy appropriate to its breach. That notwithstanding, the Company pursued the disciplinary proceedings against the worker in a less than professional way. There were never any formal charges preferred against the worker in which were particularized to him the nature of the allegations against him. There was never any reference to the ethical standards on which it seems the Company was hanging its case. There was a meeting between the worker and certain members of the Company's management as a result of which the worker was suspended pending investigations. However, there was no investigation at which the worker's side could be properly presented. In that sense he was deprived of the right to be heard.

20

In determining the extent to which an employer must offer to a worker an opportunity to respond, the Court is entitled to look at the nature, scope and size of the business and to expectof a large conglomerate stricter adherence to procedural regularity in disciplinary matters than would be expected of a snow-cone vendor toward his assistant.

21

The worker admitted having purchased parts from a supplier of the Company. He admitted that some of those parts were stocked by the Company. He insisted to the Company that they were bought for his own use. The company was able to produce no evidence that the worker acquired the parts in order to engage in a private enterprise in competition with the Company. It is being involved in a business in competition with the Company that constitutes a breach of the worker's duty of fidelity, not buying from a supplier simpliciter. That would be an unconscionable restraint on the worker which could only be binding on him if set out in a policy document in the clearest language.

22

For all these reasons the Company's decision to terminated the employment of the worker by dismissal was so unreasonable and unfair that it amounted to a dismissal carried out in circumstances that were harsh and oppressive and not in accordance with the principles of good industrial relations practice. I so hold.

23

The Court retains jurisdiction in the matter in order to hear the parties on the question of the appropriate remedy in this case and a date will be notified to the parties as to when such a hearing will be held.

His Honour Mr. C. O. Bernard